Case No.: GCG00-4327
DEBORAH RENA PINETTE
Petitioner/Defendant,
vs.
STATE OF FLORIDA,
Respondent/Plaintiff.
__________________________________/
OPINION OF THE COURT
This matter came before the court on a petition for writ of prohibition. Petitioner, Deborah Rena Pinette seeks a writ of prohibition to preclude the trial court from exercising further jurisdiction based upon the trial judge's denial of her motion for recusal. This court has jurisdiction. Fla. R. App. P. 9.030(3). Petition denied.
In this case, the petitioner asserts that she has a well grounded fear that she would not receive a fair trial before the Honorable James A. Yancey because of statements made by the judge at the pretrial conference. The record reveals that during the pretrial conference, the trial court and the parties were discussing setting a trial date during the month of October in order for the defense to have plenty of time to do what [it needed] to do. At first, defense counsel agreed but then replied je was going to request two cycles but now maybe would ask for three because . . . I filed a motion to prohibit the entry of enhanced sentence. The trial court asked why and the defense responded that there was a DUI that occurred 20 years ago, which he thought formed the basis for the state's plea offer which included jail time. Defense counsel further stated that he was waiting to see what happened in depositions and then probably set the hearing on the motion . . .so we might need a little bit of extra lead time. After further discussion, the court stated it is going to basically be an issue as to whether or not, . . . how I view it at sentencing if she's convicted. Defense counsel advised the court that it was his intention to try to take it out of the purview of the court so that the judge may not consider it at all. The trial judge responded I can consider anything I want . . . this is punishable by anywhere up to six months in jail currently in a first time offense. . . . You're telling me I can't send her to jail . . . however, I need to inform you that it's anything up to six months in jail for a first time DUI offense. Petitioner filed a motion to disqualify on the basis of this exchange.
The court, having reviewed the petition, the state's response and the transcript of the pretrial conference, finds that the facts alleged in the petitioner's motion for recusal are legally insufficient. To warrant recusal, a motion to disqualify a judge must be well-founded and contain facts germane to the judge's undue bias, prejudice or sympathy. Rivera v. State, 717 So.2d 477, 480-481 (Fla. 1998) (quoting Jackson v. State, 599 So.2d 103, 107 (Fla. 1992 ), cert. denied , 506 U.S. 1004, 113 S.Ct. 612, 121 L.Ed.2d 546 (1992)). The judge should grant a motion to disqualify if it shows that the party making the motion has a well-grounded fear that he or she will not receive a fair trial from the presiding judge. Barwick v. State, 660 So.2d 685, 691 (Fla. 1995), cert. denied, 516 U.S. 1097, 116 S.Ct. 823, 133 L.Ed.2d 766 (1996). In this case, the court's discussion with defense counsel in an attempt to understand the defense counsel's reason for requesting a later trial date and the court's subsequent disagreement with counsel regarding the applicable law does not demonstrate prejudice or a prejudging of the issues before the court. See Pope v. Wainwright, 496 So.2d 798 (Fla. 1986); Williams v. State, 689 So.2d 393 (Fla. 3d DCA 1997); Nassetta v. Kaplan, 557 So.2d 919 (Fla. 4th DCA 1990); Thompson v. State, 759 So.2d 650, 658 (Fla. 2000). Moreover, the remarks in question are not such as to indicate that the judge had made a final decision on the issue of the motion. Mobil v. Trask, 463 So.2d 389 (Fla. 1st DCA 1985), review denied, 476 So.2d 6743 (Fla. 1985). If the petitioner's motion is ultimately denied and the petitioner alleges that the ruling is erroneous, that issue may be raised on appeal from that order. Martin v. State, 2001 WL 388086 (Fla.App. 4th DCA 2001); Barwick v. State, 660 So.2d 685, 691 (Fla. 1995).
Accordingly, it is ORDERED that the petition is DENIED.
ORDERED August 2001.
Charles B. Curry, Chief Judge